Monday, 2 December 2019

Lunar Perigee Syzygy


This article is prompted by a question from @SophieJane96x [1], viz. was the Moon closer on Sunday night because it looked bigger than normal.

Well, the short answer to the question is that actually the Moon was rather farther away on Sunday than it's mean distance. Specifically, the mean Earth-Moon separation is about 385,000 km (that's ca. 239,200 miles for those who like old money, or about 79,733 leagues or so for those who like really old money [2]). At noon on Sunday 1st December it was [3] 396,003 km (246,065 miles, 82,022 leagues, ...) away which is 11,003 km [4] further away.

That being said, the actual answer is, as always with these things, a bit more complex. Because I can imagine when Sophie was looking on Sunday night the moon did appear larger.

But first we need to do a little bit of celestial mechanics.

Also, I promise you that syzygy is a real word, and not a bizarre typo.

The Earth-Moon System

The Moon orbits the Earth [5] on an almost (but not quite!) circular orbit. Technically speaking, it has a mean eccentricity of 0.0549, although due to the interaction of the Earth-Moon-Sun system it can vary between 0.0266 and 0.0762 [6]. By way of comparison, the Earth's orbit around the Sun has an eccentricity of about 0.0167 so the Lunar orbit is rather less circular than the Earth's around the Sun.

An elliptical orbit means the Earth-Moon distance is constantly varying. It transpires that the complex interaction of the Earth-Moon-Sun gravitational system [7] is actually really well modelled. In addition, it also transpires we can measure the distance to the moon at any time to about ±2 mm [8]. Or to put it in political terms, we are more certain where the Moon is than we are what voters think about Brexit.

Because we astronomers like giving names to things, we call the time when the moon is closest to the Earth perigee and when it is furthest away apogee [9]. Exactly how far away the moon is at each of those points varies depending on what the eccentricity is at that time, which you can see in this graph by Darekk2 that I have scurrilously nicked from Wikimedia Commons

If the Moon's distance from the Earth is varying, it stands to reason that how big it appears on the sky (formally: what angle it subtends) will vary too. And you would be correct! The difference in apparent size [10] between apogee and perigee is about 14 %. Again, I have viciously stolen an image from the Commons (this time made by Tomuren) to illustrate this

The important thing to bear in mind here is that while that difference looks like it is obvious, without a reference to compare against it really isn't.

So, yes the apparent size of the Moon does vary due to its orbit. But not by all that much at all.

And, by the way, everything here applies notwithstanding the phase of the Moon. Last night was a waxing crescent according to the widget on my phone [11]

As an aside (because it has nothing to do with size) the Moon is very noticeably brighter at perigee compared to apogee. Why is left as an exercise for the reader (hint, one over r-squared ;-) ).

Syzygy and Supermoons

Ok, so what are these 'supermoon' things we see in the press every now and then? And what's that weird vowel-free word?

Well, first off. No real astronomer will use the term supermoon, if only because it's ill-defined. The term was coined by an astrologer [12] [13] to do whatever it is astrologers do. The idea was that a full moon which coincided (or nearly coincided, or whatever) with perigee is in some sense marked and special.

Now, it transpires astronomers do have a name for the exact moment of a full moon. That's that syzygy word. It is basically any orbital configuration where three things are in a line — it comes from the Greek meaning 'yoked together'. Not just the Earth-Moon-Sun, it equally could apply to Sun-Mercury-Mars (which has been observed!). The exact moment of a 100 % full moon is by definition a syzygy. So, if this moment was to also exactly coincide with Lunar perigee, then you would have a syzygy-perigee.

(A new Moon is also a syzygy, but this time the order is Moon-Earth-Sun, and is why Solar [C1] eclipses can only occur at new Moons)

Which would be spectacular in the sense of being an unusual event (the woolier astrological definition of supermoon occurs a few time a year), and it would be (as hinted above) brighter than your garden variety full moon. And it would be 14 % bigger than the 'average' one.

But that's probably still not why anyone would have thought the Moon was big last night. After all, last night was neither perigee (it's only four days from apogee, actually), and it clearly wasn't a syzygy.

And just for the avoidance of doubt: the Moon being at perigee, or syzygy, or in Ares, or none of these makes no difference whatsoever. Save that obviously a less full Moon causes darker nights. That bits real (but astrologers don't seem to talk about it, oddly)

The Moon Illusion

Apparently the ancient astronomers knew about this phenomenon, and it was also recounted by Immanuel Kant. But what is it?

Broadly speaking, all things being equal, an observer perceives the Moon, when it is low in the sky (i.e. close to the horizon) as being larger than when at zenith (the highest up it gets). As the name suggests, this is entirely an illusion, a fact which one can trivially confirm with a camera. The apparent size of the moon doesn't perceptibly change over the course of a night [14].

We astronomers may have measured the distance to the moon to within two millimetres, but the psychology of human perception is not really our thing. So why this happens is a little bit unclear.

According to Wikipedia (which I trust here because, quite frankly, I know nothing more than "this thing happens"), there are a few competing ideas. The first seems to be called the "apparent distance hypothesis" [15] To explain this, let's imagine a cloud approaching from the horizon [16] (in daylight so we can see it for the moment). When it is just over the horizon, the cloud, no matter its actual size, appears small. As it approaches and rises overhead, it appears to get bigger (it's apparent size increases), reaching a maximum overhead (at zenith) before then decreasing in size as it retreats. 

The argument then goes that the human brain is so used to this phenomena, that when an object like the Moon — which as we have established subtends the same angle all night — moves across the sky, the brain assumes it must larger on the horizon and smaller at zenith. Just like a cloud would behave. [17]

An alternative explanation is the "relative size hypothesis". This says, simply, that when low on the horizon one has lots of reference points (all of which are fairly small) to compare the Moon against, whereas at zenith it is surrounding by a whole lot of nothing. Consequently one perceives the size as changing. 

Personally I like the first explanation. Either way, the take-home message here is that if you see the Moon in the sky and think "gosh it's big", it's almost certainly an illusion.

Why is it red?

Why are sunsets sometimes red? No, seriously, you're asking the same question. Now, Rayleigh scattering is a bit beyond this blog post, but that's the key thing. There is bit of an inversion between an 'ordinary' moon low in the sky and a lunar eclipse, which we'll come to in a moment.

The ultra simple explanation is that as light passes through the atmosphere it is scattered, and the more it goes through (there's some stuff about angles here that I am entirely ignoring ) the more it is scattered. So blue light scatters first (hence the sky is blue), and red light last (so that's what's left when everything else is gone) [18].

So, when the Moon is low in the sky, like the Sun at sunset the light which reflects off it then has to pass through an awful lot of atmosphere (at a steep angle, but we'll park that) to get to you, hence red.

Now, for a lunar eclipse — which, by the way, is an example of a syzygy! — the Moon is always going to be pretty high in the sky, so why is it red? Well, when the Moon is perfectly in the Earth's shadow, the only light hitting it comes via the atmosphere, and is therefore already red. It then reflects and comes back down to you.

Magic! And none of this psuedo-scientific 'blood moon' nonsense.

What about 'Harvest Moons'?

Just a name for the full moon closest to the Autumnal Equinox. Nothing special about it all.

Or 'blue moons'?

Aside from some esoteric corner cases mostly relating to things like volcanic eruptions, which we shall pretend don't exist, this has nothing to do with the colour of the Moon.

The Lunar cycle is ~28 days long (actually it is a little less but who cares), which obviously means that although most months will have one full Moon, and most seasons three; some must have two and four respectively (another way of thinking about this is that some years must have thirteen full moons).

These 'extra' full Moons are called blue moons, and hence the idiomatic phrase "once in a blue moon" to denote an unlikely [19] event.

Or 'black moons'?

The internet tells me this is something to do with having an extra new Moon in a month, but it seems like a modern invention, so let's ignore it and let it die out.


Corrigendum

[C1] Let he who is without error point out the first erratum, yes I originally wrote 'Lunar' here because I wasn't paying attention.

Colophon

I always said I would write something about astronomy, though admittedly I didn't think it would be this.

Hopefully it all made (some?) sense.


[1] Whom I only mention because it will annoy her. Sorry-not-sorry.
[2] Which I make to be 824 million cubits, or about 2 million stadia, or... I'll stop now.
[3] Is there anything Wolfram Alpha doesn't know?
[4] That 3 isn't a typo, though really I should just round it down, it isn't adding anything.
[5] There are probably conspiracy theorists who disagree, they have the disadvantage of not having a PhD in Theoretical Astronomy, and are therefore wrong.
[6] Buried somewhere on this webpage.
[7] And other increasingly exotic stuff like radiation pressure, tidal dissipation, the very small effect of the outer planets, ...
[8] I didn't believe this either when I first read it, but it is true, as this paper nicely explains (Reasenberg, R.D.; et al. "Modeling and Analysis of the APOLLO Lunar Laser Ranging Data".)
[9] These are the two Greek terms (we like Greek) for the apsides of the Moon's orbit around the Earth. The suffix -gee means we're talking about the Earth, then apo- or peri- refer to furthest away or closest, respectively. Cf. perihelion (cloest to the Sun), apocytherion (furthest from Venus), perigalacticon, apochron, ... Anyone caught sticking Greek prefixes on Latin stems will be summarily banned from all astronomical activities.
[10] We say apparent because, obviously, the actual size of the Moon doesn't change.
[11] Of course I have a widget on my phone for this.
[12] Astrology is not a science; astronomy is. Don't insult astronomers by calling them astrologers; please do insult astrologers by calling them charlatans, for they are. (I mean don't really, that's mean, but you get the idea)
[13] If you really must I'm told you can read the original article. Disclaimer: I haven't even clicked this link to check it works, let alone read it.
[14] I say perceptibly intentionally because it is slightly changing due to the elliptical orbit discussed above. But even if you could discern the 14 % apogee-perigee difference, you wouldn't discern the night-to-night difference. So we can approximate it to "doesn't change".
[15] Which Wikipedia attributes to Cleomedes, who is otherwise famous for writing an early astronomy textbook in AD 200, which also is the earliest source for Erastothenes' measurement of the size of the Earth.
[16] This also works with æroplanes, birds, UFOs, very long distance golf balls, cruise missiles, and indeed just about anything that flies.
[17] Some wily soul is going to point out here that the Moon is indeed very slightly closer to the observer at zenith than on the horizon; however, that effect is tiny (I've checked, changes of 1,000 km in six hours are not unusual) compared to the Earth-Moon separation change overnight; which we have already established is imperceptible. Clouds are much lower down, so there the effect is very noticeable.
[18] Real astronomers: yes I know I've left loads of things out, no don't shoot me, I'm trying to explain this without writing a thesis.
[19] I mean, blue moons are not all that unlikely, but idioms be idioms!

Thursday, 28 November 2019

And may the Lord have mercy on your soul — The Trial of Sir Roger Casement for High Treason


Before we begin, this is not about the facts of the case. Others have written about those at length. This article is about the procedure. Partly because the procedure in trials of that era was exceptionally florid; and partly because one aspect of the trial of Sir Roger [1] was unusual, viz. where it was held.

I am also not going to be talking about commas. Again, something for another day.

But first, a small amount of background.

Background

Sir Roger Casement was born in Dublin in 1864. After a fairly successful career in the Colonial and Foreign Offices, including writing an important and explosive report on abuses in the Belgian Congo, he left the public service in 1913. 

He then became involved in Irish nationalism. In 1914, he travelled to Germany to negotiate, as he saw it, on behalf of the Irish state with the German government. For the next couple of years he 'worked with' [2] the Germans to cause all sorts of nuisances. This isn't what got him on a High Treason charge, however.

In 1916, Germany offered (and the Crown averred that this was at Sir Roger's instigation) 20,000 guns for the Irish nationalists to use. It is disputed exactly how and why what happens next occurred, but something like it did. 

Sir Roger returned to Ireland in a submarine, probably ahead of the guns. In any event, the Royal Navy intercepted them. He was then captured in Ireland on or about 21st April 1916, and after various things, transferred to London to stand trial. 

And that's where we will pick up. The Wikipedia article on him is good if you want more details, though a bit thin on the ground. There are, however, a lot of biographies to choose from.

A Trial at Bar

At the time in England, a person accused of a felony, or of treason [3] was normally to be tried at the local Assizes, which were broadly speaking organised on a county-by-county basis [4]. Specifically, the offence was to be tried in the same county [5] as it was committed, the intention being that the jury of one's peers would then be a local jury too, which was seen as a necessity. The Central Criminal Court Act 1856 [6] muddies this somewhat by allowing the Court of Queen's Bench [7] to remove a trial from any Assize to the Central Criminal Court at the Old Bailey. As we will see, this does not avail us here, though.

Where, therefore, should an offence committed outside of any county be tried? Now, this could naturally only apply to the extraterritorial offences, the classic of which in English law is murder [8]. Whether or not High Treason was extraterritorial was in issue in the trial, but we can park that for now.

As an alternative to the Assizes, it was possible for a defendant to be tried before the Court of King's Bench itself. By the time of Sir Roger's trial, this had been amalgamated with the other Common Law courts and the High Court of Chancery to form the High Court of Justice; but aside from a change in name to the King's Bench Division, little of importance changed. This was required in the case of an extraterritorial offence [9] [10], either by virtue of the Common Law, or the statute 35° Hen. VIII cap. 2 [11], or both.

A Trial at Bar looks, broadly, rather like a trial at the Assize. There is a jury, there are judges in their wigs, etc. The only notable procedural difference is that rather than a sole judge sitting to determine questions of law (the jury are the sole triers of fact as in any other criminal cause) there is a divisional court of three judges.

In Sir Roger's trial the three judges were The Right Honourable the Viscount Reading [12], the Lord Chief Justice of England [13], Mr. Justice Avory [14], and Mr. Justice Horridge [15]. The Lord Chief Justice was obviously senior, but both Avory and Horridge were among the most senior King's Bench Division justices of the day too.

For completeness I note that Sir Roger was committed for trial by Bow Street Police Court after three days of examination in May [16].

So, we come to the start of the trial.

Oyez! Oyez!

The morning of Monday, 26th June 1916, at the Royal Courts of Justice. 
An Usher of the Court: 
Oyez. 
My Lords the King's Justices do strictly charge and command all manner of persons to keep silence, for they will now proceed to the pleas of the Crown and arraignment of prisoners upon their lives and deaths, and all those that are bound by recognisance to give evidence against any of the prisoner which shall be at the bar, let them come forth and give their evidence, or they will forfeit their recognisance. 
God save the King. [17]
Well that is quite an opening, isn't it. Not dissimilar from the standard opening for an Assize, although referring to the Bar, justices plural, and so on.

The King's Coroner [18] then put the indictment (not the Clerk of Assize as would be normal), thusly:
The King's Coroner: 
Sir Roger Casement, you stand indicted and charged on the presentment  of the grand jury with the following offence:— 
High Treason, by adhering to the King's enemies elsewhere than in the King's realm—to wit, in the Empire of Germany—contrary to the Treason Act, 1351, 25 Edward III., statute 5, chapter 2. 
The particulars of offence alleged in the indictment are that you, Sir Roger David Casement otherwise known as Sir Roger Casement, Knight, on the 1st day of December, 1914, and on divers other days thereafter, and between that day and the 21st April, 1916, being then—to wit, on the said several days—a British subject  and whilst on the said several an days open and public war was being prosecuted and carried on by the German Emperor and his subjects against our Lord the King and his subjects, then and on the said several days traitorously contriving and intending to aid and assist the said enemies of our Lord the King against our Lord the King and his subjects, did traitorously adhere to and aid and comfort the said enemies in parts beyond the seas without this realm of England—to wit, in the Empire of Germany. 
The overt acts of the said treason are as follows [...] [19]
[C1] I have omitted the six overt acts, at the time High Treason still had the peculiar requirement that at least two witnesses to each overt act be called, since they are very long and prolix.

King's Coroner

So, who is this "King's Coroner"? The full, modern, title is Registrar of Criminal Appeals [20], Master of the Crown Office [21], and Queen's Coroner and Attorney. At the time of Sir Roger's trial the office of Registrar of the Court of Criminal Appeal [22] was also held by the same person, as it happens.

The title coroner here has exactly nothing to do with coroners as we normally know them. Instead it simply means someone acting on behalf of the Crown. The office of coroner as we now know it descends from the Norman office of custos placitorum coron√¶, an official charged in each county with protecting the Crown's revenues in criminal causes. Over time this morphed into inquests into deaths (and into Treasure Trove) and lost its other criminal purposes.

Not so in the Court of King's Bench; where the King's Coroner maintained responsibility for the 'Crown Side' of the Court together with the Master of the Crown Office [23]. The two offices were merged in 1892 (not by any legislative enactment, it seems, and certainly not by the Coroners Act 1892 passed that same year). 

The Crown Office element of things seems to have been originally concerned with criminal causes in King's Bench (mostly these concerned the county of Middlesex, which had no 'normal' Assize), whereas the Coroner bit seems to be more related to prerogative writs. Either way, at a trial at bar, the charges were put to Sir Roger by the King's Coroner.

During the trial, the incumbent King's Coroner was Leonard William Kershaw, later knighted in 1921.

(I appreciate this is a very unsatisfactory answer, but it is what it is)

How do you plead?

It is a standard moment in all trials, ever popularised by television, for the Clerk to ask the defendant to plead. And the King's Coroner did thusly,
Sir Roger David Casement, how saith you, do you plead  guilty or not guilty to the charge of High Treason?
And plea there did not follow. Instead Alexander Martin Sullivan, K.C. [24] rose to quash the indictment.

It was decided by their Lordships, however, that they would consider Mr. Sullivan's request after they had heard the evidence for the Crown [25]. Thus
The King's Coroner: 
Sir Roger David Casement, how saith you, do you plead  guilty or not guilty to the charge of High Treason? 
Sir Roger Casement: 
Not guilty. 
The King's Coroner: 
Sir Roger Casement, have you been served ten days at least since with a copy of the indictment, a list of the witnesses, and copies of the panel of the jury? 
Sir Roger Casement: 
I have. [26]
This question was made necessary by the Treason Act 1695 [27]. The sections in question have since been repealed, but it was provided by section 1 that the defendant should have a copy of the indictment and by section 7 a copy of the jury panel, ten days before the trial commenced. Hence this.

Impanelling the Jury

Sir Roger was then asked by the Chief Clerk [28] if he challenged any of the panel, 
The Chief Clerk of the Crown Office:
Prisoner at the bar, these good men that you shall now hear called and personally appear are the jurors who are to pass between our Sovereign Lord the King and you upon your trial of life and death; if therefore you will challenge them or any of them you must challenge them as they come to the book to be sworn, and before they are sworn, and you shall be heard.  
"pass between our Sovereign Lord the King and you upon your trial of life and death" has a certain gravitas to it, in my opinion.

No jurors were challenged (jury challenges in English law at the time are a topic well outwith this humble blog; though I suspect a contemporaneous Archbold will satisfy any curiosity), therefore the Chief Clerk swore the jury in, viz.
You shall well and truly try and true deliverance make between our Sovereign Lord the King and the prisoner at the bar whom shall have in charge, and a true verdict give according to the evidence. So help you God.
The Usher then again made the formal call for any witnesses to present themselves. This wasn't 'real' in the sense that the witnesses didn't have to answer immediately at this moment, but was a relic of centuries past when trials were reasonably short, and witnesses had to offer a recognisance to appear, and not appearing when called forfeiting their bond.
An Usher of the Court: 
If any one can inform my lords the King's Justices, or the King's Attorney-General, ere this inquest be now taken between our Sovereign Lord the King and the prisoner at the bar, of any treason, murder, felony, or misdemeanour committed or done by him, let them come .forth and shall be heard; for the prisoner stands at the bar upon his deliverance; and all others that are bound by recognisances to give evidence against the prisoner at the bar, come forth and give evidence, or else forfeit you your recognisances.
And, finally, the King's Coroner put the indictment to the jury, viz.
The King's Coroner: 
Gentlemen of the jury the prisoner stands indicted by the name of Sir Roger David Casement, and is charged with the following office:— 
[there follows the first part of the indictment as recounted above] 
The indictment sets out the overt acts that are alleged of that treason. Upon that indictment the prisoner hath been arraigned, and upon his arraignment he has pleaded that he is not guilty. Your charge therefore is to inquire whether he be guilty or not guilty upon that indictment and to hearken to the evidence. [29]
His Majesty's Attorney-General for England [30] then opened for the Crown.

The Trial

The trial then proceeded, which I will not bore you with. Once the Crown had concluded, Mr. Sullivan addressed the Court on the quashing of the indictment [31] at considerable length. An analysis of his arguments is a matter for another day.

The Lord Chief Justice [32] gave the principal judgement holding the indictment good, joined by Mr. Justice Avory [33] and Mr. Justice Horridge [34].

The Defence Case

Sir Roger did call any witnesses in his defence. He and Mr. Sullivan (and Mr. Sullivan's junior, Artemis Jones when Mr. Sullivan was indisposed [35] ) made statements to the jury.

Then the Attorney-General closed for the Crown. Now, why was he last?

At the time, the general rule was that if a defendant called witnesses and put in evidence, the Crown's attorney spoke last; but if the defendant did not his counsel had the last word. The idea being that there is a slight supposed advantage to speaking last. However, there was a now abolished privilege of His Majesty's Attorney-General [36] to speak last in either case. Which was exercised here.

His final words to the jury being:
My learned friend, Mr. Sullivan, said in the early period of his observations that he hoped this case would be heard by you with a fair and impartial mind. The Crown hopes nothing else. You have a duty to discharge as serious and in many ways as testing as the duties which are discharged by any other men serving the State in these bloody and critical days. 
If you should come to the conclusion that the Crown has proved its case, however painful the duty, it is one from which you cannot, and you dare not, shrink. I have discharged my responsibility in this case; do you discharge yours. [37] 
The Lord Chief Justice then opened his summing-up, the first part of which I think bears repeating, viz.
The Lord Chief Justice:
Gentlemen of the jury, this is a trial of supreme importance. 
The charge against the prisoner is the gravest known to the law. You have had the advantage, shared by us with you, of hearing the case presented to you by the Attorney-General, assisted by the Solicitor-General and other counsel, on behalf of the Crown. You have had the advantage also of hearing the defence in this case conducted by Mr. Sullivan until this morning [38] with the assistance of his juniors. There are some persons who, perhaps a little thoughtlessly, are inclined to rebel against the notion that a member of the English bar, or members of it, should be found to defend a prisoner on a charge of treason against the British State. 
I need not tell you I am sure, gentlemen, that if  any one has those thoughts in his mind he has but a poor conception of the high obligation and responsibility of the bar of England. It is the proud privilege of the bar of England that it is ready to come into Court and to defend a person accused, however grave the charge may be. In this case,  speaking for my learned brothers and myself, we are indebted to counsel for the defence for the assistance they have given us in the trial of this case; and I have no doubt you must feel equally indebted.
 His Lordship concluded [39]
Gentlemen, that really concludes the whole of the evidence in this case. I have already said to you all that I think it necessary to say upon the law.  I shall not repeat it.  I will conclude only by impressing upon you that if you have a reasonable doubt in the matter after considering the evidence it is your duty to acquit the prisoner. 
But if, after viewing all the facts and circumstances, the conviction is borne in upon you that this prisoner has committed the offence with which he is charged, then, gentlemen, it is your duty to return a verdict to that effect, and to take no regard of the consequences which must follow. 
Will you consider your verdict? 
Mr. Justice Avory: 
Gentlemen, if you want any of the exhibits that have been referred to you can have them by asking.
The jury retired at 2.53 p.m.

Their Deliberations 

The Lord Chief Justice: 
There is some request about a map. There is no map of Ireland that has been proved in the case except the one to which Colonel Gordon deposed. 
Mr. Bodkin: [40]
Except the one which is in pieces. 
The Lord Chief Justice:
The jury would like to see the original code found and an authentic specimen of the initials and signature of the prisoner. None such has been proved. The original code, of course, they can have. That we will send in to them. They also ask for an original copy of the circular posted at Limburg Camp, but I understand that was not proved.

Mr. Artemus Jones: 
No. 
The Attorney-General: 
I think there is a specimen of the signature and handwriting of the prisoner, the letter written when he received his knighthood, exhibit 32. 
The Lord Chief Justice: 
That is true. I think it is better not to put it in.  I think what they really want is the initials.  One sees why they may have been asking for it.  I think it better to treat it that there is no evidence of it and leave it there.  The original code, exhibit 18, shall be sent in, and also the map.
I include this exchange simply as an example of the care, despite the political issues in play, the jury and court were taking with the cause. Indeed,
At a later stage,
The Lord Chief Justice:
The jury have asked for a copy of the indictment, which we will send them, and they also ask for a copy of the evidence, but we do not propose to send that. 
The Attorney-General:
If your lordship pleases. 

The Verdict

The jury returned into Court at 3.48 p.m.
They had deliberated for fifty-five minutes. The King's Coroner then asked for their decision, viz.
The King's Coroner: 
Gentlemen of the jury will, you answer to your names? 
The names of the jury were called over. [41]
The King's Coroner:
Are you agreed upon your verdict?
The Foreman of the Jury:
We are.
The King's Coroner:
How say you; do you find the prisoner, Sir Roger David Casement, guilty or not guilty of the high treason where of he stands indicted? [42]
The Foreman of the Jury:
Guilty.
The King's Coroner:
You find Sir Roger David Casement guilty of high treason, and is that the verdict of you all?
The Foreman of the Jury:
Yes.
Convicted. It was the practice at the day — indeed the modern practice of presenting evidence in mitigation is simply an example of this — for the prisoner to be allowed to address the court before sentence was passed. Remember, there was only one sentence for High Treason.
The King's Coroner: 

Sir Roger David Casement, you stand convicted of high treason. What have you to say for yourself why the Court should not pass sentence and judgment [43] upon you to die according to law?
Sir Roger proceeded to read a statement [44]

Sentence

The judges will now have put on their black caps.

An Usher of the Court:  
Oyez. My lords, the King's Justices do strictly charge and command all manner of persons to keep silence whilst sentence of death is passing upon the prisoner at the bar, upon pain of imprisonment. 
The Lord Chief Justice: 
Sir Roger David Casement, you have been found guilty of treason, the gravest crime known to the law, and upon evidence which in our opinion is conclusive of guilt. 
Your crime was that of assisting the King's enemies, that is the Empire of Germany, during the terrible war in which we are engaged. 
The duty now devolves upon me of passing sentence upon you, and it is that you be taken hence to a lawful prison, and thence to a place of execution, and that you be there hanged by the neck until you be dead. And the Sheriffs of the Counties of London and Middlesex are, and each of them is, hereby charged with the execution of this judgment, and may the Lord have mercy on your soul. 
Mr. Justice Avory: 
Amen.
The reference to both the Sheriffs of London and Middlesex needs a short comment. For seven hundred years, between 1189 and 1889 (yes, exactly 700!), the two elected Sheriffs of London also had shrieval jurisdiction over Middlesex. In 1889, a High Sheriff of Middlesex began to be appointed. However, while the Royal Courts of Justice are in the City of Westminster; not London. Hence the dual reference. As it happens, Pentonville Prison where Sir Roger was ultimately executed was itself in Middlesex so the Sheriffs of London had very little involement here.

But that isn't quite the end of matters. For centuries, appeals in criminal causes in England had been virtually impossible. But in 1907 Parliament had created the Court of Criminal Appeal to provide a standard and effective route for appeals.

Before this, there had been a Court of Crown Causes Reserved established in 1848 by 11° & 12° Vict. cap. 78, but this had been limited to considering points of law referred by the trial judge at the Assize. Otherwise, the only 'appeals' in criminal causes were to try and persuade Parliament to overturn the decision or to appeal to the Crown for clemency. Sir Roger's case was the first treason appeal to be heard by the Court.

The Appeal

Sir Roger's appeal was heard by a court of five High Court Judges, viz. Mr. Justices Darling [45], Bray [46], Lawrence [47], Scruton [48], and Atkin [49]. A strong panel.

The Court of Criminal Appeal being a very new invention, it had little in the way of ceremony like that of the King's Bench Division.

Mr. Sullivan presented his case [50]; and Mr. Justice Darling, after their Lordships had retired, noted that they did not need to hear from the Attorney-General,
Mr. Justice Darling: 
We  will let you know if we desire to hear you, Mr. Attorney. 
Their lordships retired. 
On resuming,
Mr. Justice Darling:
We have no occasion to trouble you Mr. Attorney.
Mr. Justice Darling then gave the judgement of the court [51]. It should surprise no one that the Court of Criminal Appeal did not find for Sir Roger. 

The End

Sir Roger was executed on 3rd August 1916.

I hope this little tour through the procedural aspects of Sir Roger Casement's trial was interesting. Elsewhere one can find ample discussions of the legal arguments themselves, which I have tried to avoid.

Corrigenda

[C1] (spotted by me!) this sentence originally, incorrectly, read "I have omitted the six overt acts, at the time High Treason still had it's peculiar requirement that at least two overt acts be alleged and proven, since they are very long and prolix." Clearly my brain went on a journey there...

Colophon

I am indebted to George H. Knott's "The Trial of Sir Roger Casement", which as well as containing a lucid summary of proceedings, includes a full transcript of both the trial and the appeal. I commend it to anyone who's interest has been piqued by this article.

[1] Sir Roger Casement's titles were degraded by the King on 29th June 1916, but I will call him Sir Roger throughout because that's how he was referred to during the trial (plus I strongly object to titles of honour being forfeited for complicated moral reasons that are well outwith this article's scope)
[2] or was used by, or both, it doesn't really matter
[3] the traditional division of crimes into three types: treasons, felonies, and misdemeanours was still in effect at the time; and yes it was originally treasons plural since High and Petit Treason were originally distinguished; the latter being assimilated with the felony of murder in 1828 by 9° Geo. IV cap. 31
[4] with judges riding an organised circuit of counties, e.g. the 'Oxford Circuit' or the 'Chester Circuit'
[5] there are pages, and pages, and pages in old Archbolds on how to deal with cross-county crimes; which we shall ignore
[6] 19° & 20° Vict. cap. 16; sometimes the "Trial of Offences Act 1856" 
[7] by this time this was the King's Bench Division of the High Court of Justice
[8] It is still the case today that if a British Citizen commits murder abroad they may be tried in Her Majesty's courts in the United Kingdom notwithstanding the offence was not committed in any of Her Majesty's Dominions.
[9] It was also an option in the case of any felony, albeit at the discretion of the court, and was reserved for the most contentious and serious charges; and it is hinted in the authorities that the Attorney-General had the right to require a trial at bar in any High Treason cause. 
[10] There is a good discussion of this on about page xvi onwards of "The Trial of Sir Roger Casement" by George H. Knott; which I shall henceforth call Knott since we will be referring to it a lot. It's also very good and you should read it!
[11] "An Acte concerning the triall of Treasons committed out of the Kings Majestys Domnyons", which you will find on page 958 of volume 3 of Statutes of the Realm.
[12] As he then was. Lord Reading was later made Earl of Reading, and later still after a stint as Viceroy and Governor-General of India, Marquess of Reading.
[13] At the time, and this only recently changed with the Constitutional Reform Act 2005, the Lord Chief Justice was president of the King's Bench Division, having prior to amalgamation been Chief Justice of the Court of King's Bench.
[14] Sir Horace Edmund Avory, having received the customary knighthood on becoming a Justice of the High Court.
[15] Sir Thomas Gardner Horridge, on his retirement he was made a Privy Counsellor, normally the preserve of Pusine Justices of the Court of Appeal, and became the Right Honourable Sir Thomas Horridge.
[16] This not being quite the formality it is today, but nothing much turns on it.
[17] Knott, p. 1
[18] Nothing to do with those coroners, keep reading!
[19] ibid.
[20] They are also Registrar of the Court Martial Appeals Court
[21] No, not that Crown Office, nor that one either.
[22] Only merged with the Court of Appeal proper to form the Criminal Division thereof in 1966 by the Criminal Appeal Act 1966.
[23] Where there was also a Clerk of the Crown, distinct from the Clerk of the Crown in Chancery which still exists.
[24] at the time, Sullivan was also Second Sergeant-at-Law in Ireland; the Sergeants were an almost obsolete order of lawyers even more senior to the barristers and King's Counsel. In England they had already died out and the process was underway in Ireland, indeed, Sergeant Sullivan ended up being the final practising one, and thus the last member of the 'order of the coif'. I intent to blog about this in the future, so wait and see :-)
[25] nothing improper here, the quality of an indictment might be improved or harmed by the Crown's case and the judges wanted to see if it was
[26] Knott, p. 5
[27] 7° & 8° Will. III cap. 3; the original version can be found on page 6 of volume 7 of Statutes of the Realm.
[28] no relation to any other clerks of any other Crown Offices
[29] Knott, p. 6
[30] The Right Honourable Sir Frederick Edwin Smith, K.C., M.P., later made Earl of Birkenhead.
[31] Knott, p. 67.
[32] ibid., p. 127
[33] ibid., p. 130
[34] ibid., p. 133
[35] ibid., p. 156
[36] ibid., p. xxi
[37] ibid., p. 178
[38] This was the indisposition I alluded to above.
[39] ibid., p. 196
[40] This is Archibold Henry Bodkin, a Treasury Counsel and a Recorder at the time; in 1917 he was knighted, and in 1920 Sir Archibold was appointed Director of Public Prosecutions
[41] This, I believe was required to ensure the jury that heard the case and went out are the same jury that returned. As I understand it, it is no longer part of criminal procedure.
[42] Notice "of the High Treason"? Recall that we noted earlier that treason is a category, not a single offence.
[43] sic., any Americans reading this: you're wrong.
[44] Knott, p. 197 et seq.
[45] Sir Charles John Darling, senior pusine judge in the King's Bench Division at the time; he was made Privy Counsellor in 1917, and Lord Darling in 1924
[46] Sir Reginald More Bray
[47] Sir Alfred Tristram Lawrence, succeeded Lord Reading as Lord Chief Justice in 1921 and was made a Privy Counsellor and Lord Trevethin the same year
[48] The Right Honourable Sir Thomas Edward Scrutton; as he was a Lord Justice of Appeal in 1916 I think that Knott at p. 207 is incorrect to list him as Mr. Justice but absent evidence to the contrary I have kept it here
[49] Sir James Richard Atkin, FBA. Became a Lord Justice of Appeal and thus a Privy Counsellor in 1919; and a Lord of Appeal in Ordinary and thus the Lord Atkin in 1928.
[50] Knott, p. 208
[51] ibid., p. 280

Saturday, 23 November 2019

Demises of the Crown and Elections


No one wants to think about it, London Bridge, that is. But the law must. One of the odder aspects of a demise of the Crown [1] only occurs if a General Election is underway at the time. And that is what we shall consider here.

A Bit of History

Originally, the King was seen as caput, principium, et finis of Parliament [2]. That is, a demise of the Crown would ipso facto put end to the sitting Parliament [3]. Not having a sitting Parliament when the succession might be contested, for example, as might have happened in the first decade of the eighteenth century if the Hanoverian succession was challenged, was seen as inexpedient, however.

So, in 1707, Parliament passed "An Act for the Security of Her Majesties Person and Government and of the Succession to the Crown of Great Britain in the Protestant Line", otherwise known as the Succession to the Crown Act 1707 [4]. Section IV of which (which we shall return to in a future blog to discuss its other effects) abolished the rule of law that Parliaments dissolve on a demise, viz.

The unamended version [5] of this Act then, instead, provided that a dissolution must follow within six months. This provision, for example, caused the highly consequential 1830 General Election which had a role in the Reform Bill Crisis [5bis].

Even this was seen as annoying by 1867, however. Although, obviously, there had been no demise related dissolutions since 1837 [6] the changing nature of Parliament and democracy made a forced dissolution undesirable. Therefore, section 51 of the Representation of the People Act 1867 [7] provided (from the Queen's Printer edition)

or as still in force today,

So now Parliaments continue without interruption on a demise of the Crown. But what happens if the demise occurs during the election campaign itself?

Demises during the Election

Originally, Parliamentary elections took ages [8]. And so many opportunities were provided for Returning Officers to delay or modify proceedings that no specific provision for dealing with public mourning on a demise was necessary. With the various reforms to the election process, culminating with the rules providing for a fixed day of polling across the whole country, some provision became necessary.

The 'computation of time' rule, which now finds itself as Rule 2 of the Parliamentary Election Rules [9] looks like it might provide an answer, viz. by declaring all days of public mourning to be dies non [10]. But what even is a day of public mourning? Instead for a demise of the Crown, a bespoke legislative provision is provided at section 20 of the Representation of the People Act 1985 (as inserted in place of the old section 20, which we will consider momentarily, by the Fixed-term Parliaments Act 2011), 



In effect this inserts 14 calendar days of dies non into the timetable on the day the demise occurs (except one situation) if it precedes polling day. The logic, of course, is that it is untenable to have an election campaign during the mourning and funeral processes of the late Sovereign. Of course, after polling day, Parliament can simply assemble and then decide what to do. Legislative provision is needed to alter the effect of the summoning proclamation and writs which would otherwise bear the 'wrong' date, but otherwise, despite a 14 day hole being carved out of it, the election will proceed as normal.

The previous situation was similar, but but because previously the date of dissolution was not fixed, being instead determined by proclamation, it was a bit more woolly,




In addition, the fixed date of dissolution provided for by section 3(1) of the Fixed-term Parliaments Act 2011 required the inserted version to include a provision to handle a demise close to the start of the campaign [11]. I assume to avoid prolonging the existence of a Parliament beyond the five-year mark accidentally, this provision, found at 20(7), simply pretends the demise happens on the day of dissolution. I.e. the fourteen dies non are inserted right at the start of the campaign.

Is fourteen days enough? If the leaked London Bridge materials are anything to go by, ten-ish days is the plan for mourning and a funeral, so yes. Fourteen calendar days has the advantage of keeping the election on a Thursday... or does it?

A Friday General Election?

The fourteen day rule above can, in two special situations, cause a Friday [12] General Election. And indeed, in theory could do so this year. Assuming a Thursday day of polling, there are only 'two' [13] dies non which can coincide (since the abolition of Maundy Thursday as a die non in 2006, about which I remain bitter) — Christmas and New Year, as we see in Rule 2,


(the repeal under F5 is Maundy Thursday, by the way, and the original version of this rule provided an even longer period)

Polling day this year is Thursday 12th December. If Her Majesty was, unfortunately, to die, 14 calendar days later would be Thursday 26th December, which as Boxing Day is a Bank Holiday, is declared to be a die non by Rule 2.

When is the next working day? Friday, 27th December. 

So, for the happiness of all our Christmases, let's pray Her Majesty continues!

Colophon

Acts of Parliament are available from legislation.gov.uk under the  Open Government Licence v3.0.

[1] Now, this isn't 'demise' as in decease, it is 'demise' in the Legal French sense of an transfer, deriving eventually from the Latin demitto, or 'send away from', from which we also obtain the English word 'demit' as in my oft used expression calling for someone to resign, 'they should demit office forthwith'.
[2] Blackstone, don't have a page number because I can't remember it and my PDF isn't OCRed so it isn't searchable.
[3] It also had the effect of staying all legal proceedings since the King was likewise the fount of justice, and also causing all of the civil service and household to demit their offices; these greatly unhelpful effects have likewise been abolished.
[4] 6° Ann. cap. 41
[5] I am indebted to Rich Greenhill for pointing this out.
[5bis] I note, as my coming, one day, blog on dissolution proclamations will observe that this necessitated no change in the wording of the proclamation to reflect the sudden reduction in the life of the Parliament — not unsurprisingly, in my opinion.
[6] The King died in June, Parliament continued to sit until Victoria prorogued and then dissolved it in mid-July
[7] 30° & 31° Vict. cap. 102; sometimes known as the 'Second Reform Act' or the 'Great Leap in the Dark'
[8] Actually, the process of election in any particular constituency was relatively zippy, but the overall process of a General Election was most certainly not.
[9] This is Schedule 1 to the Representation of the People Act 1983, from now on when I say Rule X, I mean these.
[10] It really irks me when people write 'a dies non', since dies is clearly plural, so it's "Monday is a die non", but "there are three dies non this week". The Romans had a lovely word, which is plural only, for a similar concept called nefasti, not that that matters. Rant over.
Addendum: it has been pointed out that this footnote is incorrect, mostly because Ben thought (and has thought for ages somehow) that dies was actually a first-declension noun with the stem die. But since eliminating this footnote would give me no way to include the nefasti point, it is staying with this note.
[11] Previously, I assume, the solution here would have just been to 'put off' the dissolution by a few weeks.
[12] Or, if Christmas was one weekday later this year, a Monday one...
[13] I say 'two' because it's really one set and one day: the set of Christmas Eve, Christmas Day, and Boxing Day; and New Year's Day — curiously New Year's Eve is not a die non.

Wednesday, 20 November 2019

Disqualifications, By-Elections, and Supersedeas


Yes, there is a general election going on. This article is not about those. Instead, let's consider what happens when an MP needs to be replaced while Parliament is sitting. Unsurprisingly this happens relatively often [1], the most recent occasion being in Brecon and Radnorshire on 1st August this year.

What happens less often is that after deciding that a by-election is needed, sometimes the Commons then realises one can't or shouldn't happen. For this we have to consider the extraordinarily exotic 'writ of supersedeas'.

But to get there, we first need to consider the concept of MPs resigning (they can't) and MPs engineering their own disqualification (which they can certainly do).

(The dissolution proclamation article really is coming, I just keep finding more!)

Resigning as an MP

Members of the House of Commons can't resign. This seems to have been, with some exceptions, the invariable practice of the House since time immemorial. This helpful factsheet [3] from the House of Commons notes that on the 2nd March 1623 [4] the House passed a resolution that "that a Man, after he is duly chosen, cannot relinquish". What is interesting, at least to me, about this is that this resolution appears in the Journals to be incidental to dealing with a controverted election in Southwark [5]


Now, straight off the bat, yes that is Sir Edward Coke, of Pleas of the Crown fame. Small world. The important thing here isn't whatever mess the burgesses of Southwark had got themselves into with their election, but that one of the contenders, Mr. Bromfeild, tried to essentially concede the seat to Mr. Mingy but the Commons were having none of this. I doubt they thought we would still be citing their consequential motion 396 years later though [6].

So, how does one cease to be an MP? Well, the only way in practice is to engineer one's own disqualification.

Disqualification

Broadly speaking, the reasons an MP can become disqualified have not changed much for centuries. Most of the following were originally by immemorial practice, now often (but not always) codified in various statutes, one can't become or remain an MP if one is
  1. Not an adult (originally twenty-one, lowered to eighteen by section 17 of the Electoral Administration Act 2006) 
  2. Not a British or Commonwealth citizen, originally the criteria was being a natural-born subject [7] per section III of the Act of Settlement 1701; this was softened to being a British or Commonwealth citizen by schedule 7 to the British Nationality Act 1981; and then slightly tightened to only allow Commonwealth citizens with indefinite leave to remain by section 18 of the Electoral Administration Act 2006 [8]
  3. Subject to a bankruptcy restrictions order or undertaking [9], now contained in section 426A of the Insolvency Act 1986 (historically the criterion was being an undischarged bankrupt)
  4. Being a member of the House of Lords — there is no statutory authority for this (except for Lords Spiritual), it having simply ever been the rule [10]
  5. Being imprisoned for more than one year per section 1 of the Representation of the People Act 1981 (except for high treason, where any imprisonment suffices, per section 2 of the Forfeiture Act 1870 [11])
  6. Holding a disqualifying office per the House of Commons Disqualification Act 1975 — the original prohibition was much more stringent and excluded any holder of any office of profit under the Crown, no matter how esoteric (we will return to this below).
Two other historical disqualifications are worth mentioning. The first was being an ordained member of the clergy. This was abolished by the (obviously named) House of Commons (Removal of Clergy Disqualification) Act 2001 [12]. The second was being detained in a mental hospital. This most recently found form in section 141 of the Mental Health Act 1983, and was repealed by section 1 of the Mental Health (Discrimination) Act 2013. Additionally, as highlighted in Bradlaugh's case, one was functionally unable to sit and vote if one couldn't or wouldn't take the oath, but merely not doing so does not of itself vacate one's seat.

(Note: here I omit any discussion of ways to accidentally, or forcibly [13], cease to be an MP but which have no continuing effect, like voting before taking the oath because they're simpler)

Offices of Profit

On the 30th December 1680, the Commons resolved that [14]


Various pieces of legislation were passed over the ensuing centuries regulating this, but the situation became that accepting any office of profit was instantly disqualifying. This obviously presented issues for Ministers, so a series of Acts provided first that they could continue to sit having submitted themselves to a by-election, then that such by-elections were only needed for new appointments more than nine months after a general election, and thereafter abolished. 

This eventually became utterly unworkable. For one, various totally innocent MPs who held esoteric minor offices could find themselves accidentally disqualified. But more serious, it was provided, eventually by the Representation of the People Act 1949 that any person could bring an action against an MP sitting whilst disqualified as a common informer (at least until the Common Informers Act 1951 abolished that). After some false starts and much tweaking, Parliament passed the House of Commons Disqualification Act 1975 to provide a comprehensive and complete list of disqualifying offices. Almost all of these are obvious (although the list is very, very, very, very, long [C1]) but two stand out in section 4


And this is the procedure we're going to consider going forth — although disqualification by other means proceeds in broadly the same way after the first step. Or at least we would stick to just this procedure if Ben had FOIAed the correct thing. But nothing much turns on that.

So, you want to resign as an MP?

We have noted that MPs can not resign. But if an MP were to intentionally accept a disqualifying office, say as Crown Steward and Bailiff of an obsolete manor in the Chilterns, that MP would ipso facto cease to be an MP — so there is a method. (I guess an MP could also engineer their own bankruptcy or imprisonment but that seems rather extreme)

For reasons that remain obscure [15] the Chancellor of the Exchequer appoints Crown Stewards and Bailiffs of either the Chiltern Hundreds or the Manor of Northstead. So to resign, MPs write to the Chancellor and ask to be appointed. Theoretically, this could be refused (and has been in the past, usually when an MP was facing some sort of Commons investigation into a controverted election and was trying to dodge it), but never has been in modern times. Her Majesty's Treasury will then cause a warrant in the following form to be issued, first for the Chiltern Hundreds

(This is the warrant appointing Chris Huhne as Crown Steward on 5th February 2013; sorry it's blurry, blame HM Treasury's scanners; obtained by the indefatigable Steve Elibank )



(This is the warrant appointing David Cameron as Crown Steward on 12th September 2016; this time procured by Ned Donovan and scanned somewhat more legibly)

These warrants display a rare outing of the Chancellor's full title as "Chancellor and Under-Treasurer of Her Majesty's Exchequer". In theory, once appointed, one remains a Crown Steward until either released (for example to run for Parliament again, e.g. as David Davies did in 2008) or until a successor is appointed. In Huhne's case we can see he is replacing Denis MacShane; in Cameron's case, and I know not why, his predecessor as Crown Steward, Huw Iranca-Davis, is not mentioned.

Once this warrant is signed by the Chancellor, the Speaker causes a entry to be made in the Votes & Proceedings, and ultimately the Commons Journals, that the member concerned has ceased to be an MP. However, this doesn't in and of itself cause a by-election. So, on 12th September 2016, in the Votes & Proceedings [16]



I pause here to note that the death of a member is noted immediately after prayers by the Speaker, and any statement he makes is recorded in the Journals, e.g. as happened on 27th February 2016 when Sir Gerald Kaufman died [17]

The Warrant

No election can occur until a writ is issued from the Crown Office to the relevant Returning Officer to cause it to happen. In a general election, by virtue of section 3(3) of the Fixed-term Parliaments Act 2011, this is entirely automatic. In a by-election it needs to be requested (modulo one case) by the House of Commons. By a weak convention, the motion for this — specifically a motion requesting the Speaker issue his warrant to the Clerk of the Crown in Chancery — is moved by a whip of the party the departing MP hails from. For example, on 27th June 2019 after Christopher Davies had been unseated by a recall petition [18] [19]


This motion is debatable (and has been in the past) and it has been held that negativing it prevents the 'writ being moved' again for the remainder of that session (the expedient of the previous question [20] has been resorted to to avoid this problem [20bis]).

The Speaker then sends a warrant to the Clerk of the Crown. Of which I have obtained a copy 
I meant to also get the 'disqualifying office' one but I forgot. For the decease of a member, see the Annexe at the end of this article. I rather like both the phrasing "By virtue of an Order of the House of Commons this day made" and "For which this shall be your sufficient warrant".

Recess Elections Act 1975

The Recess Elections Act 1975 provides a, in my humble opinion, Byzantine set of provisions permitting by-elections to be held without needing a motion in the Commons. Section 1(2) excludes the two Crown Steward 'offices' from its operation, but otherwise it applies to all deaths, disqualifying offices, and bankruptcies. If two MPs deliver to the Speaker during any recess a certificate in the form in Schedule, viz. something like


and the various procedural hoops about Gazetting the vacancy and so on are jumped through, the Speaker can issue his warrant and a writ of election will be issued. Historically, this procedure used to be used with reasonable frequency — it was common to see after any long recess the Speaker announcing a list of writs issued in the recess. In modern times it seems to be broadly neglected.

By way of conclusion for this section, the provision in section 4 for having between three and seven MPs exercise the Speaker's powers under the Act is wonderfully... odd...


(4(1) does hint at a seal used by the Speaker, which I would love to see)

Writ of Election

The form of the writ of election is provided by the appendix [21] to schedule 1 to the Representation of the People Act 1983 (no amendments of consequence have been made since 1983 so lets use the Queen's Printer edition of the Act since I prefer the formatting)


In the flesh they look like this. [22]

The actual process for sending the writs out is, naturally, itself a little odd, but I think I will save that for a more comprehensive "UK election oddities" article.

Supersedeas

What happens if the Commons don't want a by-election any more? Fear not, the British constitution has provided for this eventuality too [23]. The Commons can resolve to have Mr. Speaker ask the Clerk of the Crown in Chancery issue a 'writ of supersedeas' cancelling the by-election. Most recently (indeed the first time for over a century) this was done in 2017 to cancel the Manchester Gorton by-election due to the early General Election [24] [25]:



This was last resorted to in 1880, when the Hon. Henry Strutt became the second Lord Belper ("called up to the House of Peers", as the Journals will record) but it transpired he was slow sorting out the formalities [26]


The writ itself had been moved on the 6th [27]


The House tried again, more successfully, on the 12th July [28] (taken from the Journal because volume 254 of Hansard is missing online)


A supersedeas was also resorted to in 1851 when a writ of election was inadvertently issued when it was supposed that being appointing an ambassador was an office of profit (for some unclear reason, it wasn't) [29]


And in 1830 (although this says volume 1, it really means volume 1 of the third Hansard series, the curious might note that the sixth series began in March 1981) as a way of penalising corruption (I think) [30]


Final Observations 

Like a lot of the British constitution, the process of being disqualified from the Commons, and how one is replaced, is scattered through a myriad of documents spanning several centuries. However, one thing is not written down anywhere: no enactment provides authority for the Commons to order by-elections to occur, that's one of the those truly unwritten constitutional things. The same for writs of supersedeas.

Corrigenda

[C1] Originally here we had "and the online version is wrong!"; after a gentle prod from the National Archives and a quick check, it transpires the online list is correct and Ben was wrong. For what it is worth, historically, this wasn't true...

Colophon

The journals of the House of Commons (the very old ones) can be found on British History Online. Hansard, the (somewhat old) Journals, and the Votes & Proceedings are licensed under the Open Parliament License.

I am also eternally grateful to those who went before me with FOIA requests for things :-)


[1] Although it used to happen even more often; not only were there more deaths of MPs (well at least it seems there were) but in the nineteenth century the ministerial by-election [2] was still a thing
[2] I prefer the hyphen and I'm sticking to it. Manuals of Style be damned. Also footnoting a footnote.
[3] House of Commons Information Office, Procedure Series Factsheet P11, April 2011
[4] Old style; i.e. when the Julian calendar was used (not important here) and when the start of the year was Lady Day. I like this so I'm not "modernising" the date.
[5] House of Commons Journal, volume 1, 2nd March 1624
[6] By way of aside, until the nineteenth century, the Commons used to spend an incredible amount of time dealing with controverted elections.
[7] Not in the more modern very specific meaning of the term British Subject, on which nothing of consequence here turns
[8] Yes, a little convoluted this one!
[9] Or having a sequestered estate in Scotland
[10] Interestingly there is also no statutory authority for the prohibition on members of the House of Lords voting
[11] Until the Criminal Law Act 1967 amended it, a comparable prohibition was actually to be found in the Forfeiture Act 1870 too. Arguably, the 1981 Act 'put things back how it was'.
[12] This prohibition having been extended to the Church of Scotland by the House of Commons (Clergy Disqualification) Act 1801, now repealed.
[13] The two 'forced' methods are being expelled the House (now rare), or being unseated on a recall petition under the Recall of MPs Act 2015 (contrary to all expectations, not as rare as predicted!). Historically, one could also effectively demit office as MP for place X if elected to two or more places after one made their election for which one they wanted to sit for. As usual the Electoral Administration Act 2006 abolished this (boo!)
[14] House of Commons Journal, volume 9, 30th December 1680
[15] At least to me, though I'll throw in a bit of trivia as compensation: if the office of Chancellor of the Exchequer is vacant, the job would devolve on the Chief Baron of the Exchequer, which after the merger of all the various superior courts in the late nineteenth century combined with the Lord Chief Justice...
[16] Votes & Proceedings, number 35 of the session 2016-17, 12th September 2016
[17] Votes & Proceedings, number 155 of the session 2016-17, 27th February 2017
[18] I would have used a disqualifying office as the example here but for reasons that will rapidly become clear, this example is better. The process is identical though.
[19] Votes & Proceedings, number 321 of the session 2017-19, 27th June 2019
[20] A topic for another day, that.
[20bis] somewhere in this debate
[21] An appendix to a schedule is a bit perverse, but compared to the rest of election law this is pretty ordinary...
[22] If the Crown Office ever reply to my FOIA request, I will insert the actual Brecon & Radnorshire writ here...
[23] When I discovered this I was actually surprised, simply because this is the sort of lacuna one comes to expect in election law.
[24] Votes & Proceedings, number 138 of the session 2016-17, 20th April 2017
[25] Again, if the Crown Office stop ignoring me, I would have the text of the writ here. I will insert it one day, hopefully...
[26] House of Commons Debates, volume 253, column 1919, 8th July 1880
[27] House of Commons Debates, volume 253, column 1748, 6th July 1880
[28] Commons Journal, volume 135, page 294.
[29] House of Commons Debates, volume 114, column 14, 5th February 1851
[30] House of Commons Debates, volume 1, column 1217, 16th December 1830

Annexe

Form of the Speaker's warrant for a writ of election after the decease of a member:
(blame the House of Commons for the terrible scan)

Monday, 18 November 2019

Declarations of War, the State, and Parliament — The Second World War (part two)


I do promise that one day I will blog about something else (I have a bumper one on dissolution proclamations planned, but I keep finding more, which whilst normally the academic's blessing is quite the curse when you're not being paid to do it). Until then, we continue where we left off in part one [1]. There, war had just begun with Italy, which made almost no difference in France [2] but was quite a nuisance elsewhere [3]. Now we move forwards to December 1941. But not that war.

War with Finland, Hungary, and Romania

Finland had fought (and lost) the brief Winter War [4] with the USSR in 1939-40, and took the opportunity to resume hostilities [5] when Germany invaded the USSR [6]. Meanwhile, Hungary and Romania [7] joined the invasion [8] of Russia too. As it happens, Romania's participation preceded Hungary by a few days, but exactly why is unimportant.

This obviously presented a quandary for His Majesty's Government. Since the Molotov–Ribbentrop_Pact [9] [10] the United Kingdom and the Union of Soviet Socialist Republics were not best of friends, but as we all know the enemy of my enemy is my friend. So, Britain moved to support Russia. This necessitated resolving the question of the three powers involved in Barbarossa with whom His Majesty was officially neutral (and, in the case of the Fins, HM Government had, at least in form if not in substance, supported in 1939!). 

The Third Supplement to the London Gazette of Friday, 5th December 1941 (printed on Monday, 7th December, war with these powers clearly not rising to the level as to require a special weekend printing) [11] reports it thus.



The first, and most obvious, difference to spot here is the varying causas bellorum [12] cited. For Hungary and Romania, the government simply present an ultimatum to cease hostilities with Russia; for Finland things are more nuanced. It would obviously have been untenable for the United Kingdom to recognise any Russian claim to parts of Finland, so the ultimatum is presented in such a way as to allow the Finns to continue any hostilities required to re-capture or defend parts of Finland, but no more.

We also see that in all three cases the notes had to be delivered by the Ministers-Resident of the United States in each power, obviously the exigencies of war had long made a British diplomatic presence untenable. Interestingly, the Finnish Government at least replied saying, in terms 'no'; Hungary and Romania simply ignored the message.

As it happens, these declarations made very little difference in practice. The first mention of them in the Commons is not until 12th December [13] (although, given what also happened on the 7th, there were more pressing affairs at hand), and even then it is very brief:



For reasons that will become apparent later, we will deal with the usual proclamation extending the prohibition on 'contraband of war' to Hungary et al. further down.

Australia

First, a minor diversion. On Friday 5th December the Government Gazette included this notice [14] 


This is effectively a recognition that, after invading on 2nd May 1941, by June the British had made Iraq into effectively a protectorate (again). [16]

Unlike last time, there is no note from the Prime Minister in the Gazette, simply the proclamation declaring a state of war (and thus activating emergency legislation, in the very limited sense it would have been necessary) [16]

Again, and the Australians seem to make a habit of this (although, to be fair, it was not unusual for sittings of Parliament to be much less frequent than modern times), Parliament was adjourned. Parliament was of course recalled, but to deal with a much more serious matter, of which we will treat of momentarily.

Canada

As before, the proclamation in Canada was issued under the prerogative not pursuant to a statute, the Canadians, however, choosing to publish on a Sunday. [17]


The Governor-General, the Earl of Athlone, has a wonderful set of titles I think [18].

New Zealand, who definitely did declare war on Hungary et al. the same weekend, are omitted because once again I can't find their records online.

War with Japan

By unhappy coincidence, the British declarations of war above taking effect on the 7th December also coincided with an even more marked event. I can't put it any better than Churchill's famous letter, which the Gazette reports verbatim. [19]


It isn't abundantly clear why it took so long to publish this letter, since it was written and delivered on the 8th. As an interesting historical curio, the United Kingdom made this declaration slightly sooner than the United States since Congress needed to approve the latter. In any case, it mattered very little since by an Imperial Rescript Japan had declared war the previous day (albeit not before engaging in any conflict as required by the Third Hague Convention)

On Tuesday, 9th December the necessary proclamations were issued for sorting out war contraband and so on for both Hungary, Romania, and Finland and also Japan. Whereas some alacrity could be expected in the latter case, given the limited attention paid even in Parliament to the former I don't think it is surprising it took slightly longer. [20]



Astute observers will notice this issue of the Gazette precedes the supplement mentioned above. Very astute observers will notice that on the 7th (relatively late in the evening as news arrived) Parliament was summoned to meet early. At the time, the Commons had a regular wartime sitting pattern of three days a week (the arrangements for which given the security situation could conceivably be an article of their own) so to discuss the Japanese situation on Monday a recall would be required. [21]


Later in his speech, Churchill notes that "I do not yet know what part Siam, or Thailand, will be called upon to play in this fresh war". Park that thought, we will be coming back to it.

No emergency legislation was necessary - by 1941 the legislative infrastructure needed to prosecute the war was already in place.

Proceedings in the dominions broadly followed the usual practice, although I take the opportunity to point out the issue of the Australian Government Gazette recalling Parliament [22]


Given their proximity, war with Japan is obviously even more consequential to them that the United Kingdom.

The next few sections will speed things up a little so this article actually ends.

War with Bulgaria

Before I begin, whilst discussing this with a co-conspirator, this was described as a 'diplomatic sub-tweet', hence I have christened it the 'Bulgarian sub-tweet'. Saturday, 27th December, this notice appeared in a supplement to the London Gazette [23]


It seems the Bulgarians declared war, and didn't actually bother to tell anyone. Which is very much not how things are done in diplomacy. I also take the opportunity here to compare this with the declaration of war on Bulgaria in 1915 (see the First World War post). In the latter, the declaration was explicitly between the two Kings, here it is between two countries. How diplomacy had already begun to change!

(What actually happened was that Germany was pressuring Bulgaria to join the war — which it hadn't done despite being an Axis power [24] — so the Bulgarians did the bare minimum possible. Didn't stop them being bombed though [25] )

Although the Australian Parliament's own website [26] notes Australia declared war on 6th January, it seems they never bothered to Gazette this (and believe me, I read every Government Gazette for December 1941 to the end of January 1942...). Indeed, you strongly get the impression from here and elsewhere that they didn't care all that much about this minor change in affairs. Google tells me Canada and New Zealand declared war and/or noted a state of war existed at about the same time as the United Kingdom. I will leave that as an exercise for the reader.

The Australian Government did find time to requisition binoculars [27], however.

War with Thailand

This really is the last one (the Second World War truly was a 'World War'!). In the 6th February 1942 London Gazette, this appears [28]





Thailand had declared war, partly prompted by allied bombing of Bangkok [29], and partly as with Bulgaria due to allied pressure: in this case from Japan [29bis]. And thus we now know what part Thailand was to play in the war, as alluded to by Churchill. Meanwhile, on the 28th January a question was asked in the Commons which is, arguably, a little bit prescient [30]


(Later that day a two day confidence debate begun. As an interesting bit of trivia, the final vote was ayes, 464 —No, 1. The solitary no was the Independent Labour Party MP James Maxton, and his colleagues in the ILP Rev. Campbell Stephen and John McGovern stood tellers)

Mostly because I give you best for reading this far, I think I'll leave Thailand here (and also because the next reference I can find to Thailand in Hansard is in the Autumn of 1942)

That concludes the tour of declarations of war.

Peace

Victory in Europe Day was 8th May 1945. This, like in the First World War, elicited no specific notice in the Gazette. However, the Commons was suitably relieved — or at least it would be but the volume of Hansard for the early part of May 1945 is missing online!

We do have Victory in Japan Day, however. This was just after both Houses had reassembled after the election, and, exceptionally, something quite exceptional occurred: [31] 

[...]




The House had just gone to the Lords to hear the King's Speech, and had done a little switch-around with their Chamber [32], and now, exceptionally, they went immediately to St. Margaret's. And even more exceptionally, Hansard records the service verbatim [33] [34] 




(the Speaker also notes an interesting, and slightly spooky, curio: [35]


)

And that concludes 'part two of part two'. In a future edition, probably when I've fixed all the broken footnotes, we will go back in time to wars before the 20th century.

Colophon


The London Gazette is licensed under the Open Government Licence v3.0; Hansard and the Journals are licensed under the Open Parliament License; the historic Commons Journals can be found online (for which I am eternally grateful). Australian Government Gazette entries are sourced from the Federal Register of Legislation, which is provided under a Creative Commons Attribution 4.0 International license.

[1] you should also read the first article in this series (I suppose that makes the said 'part one' really part one of part two, but let's not go there)
[2] Italian invasion of France, Wikipedia, (as at 6.16 p.m. 2019-11-11)
[3] Battle of the Mediterranean, Wikipedia (as at 6.19 p.m. 2019-11-11)
[4] Winter War, Wikipedia (as at 6.43 p.m. 2019-11-11)
[5] Continuation War, Wikipedia (as at 6.44 p.m. 2019-11-11)
[6] Operation Barbarossa, you can Google that one yourself!
[7] I'm going to exclusively adopt the modern spelling without the 'u' here.
[8] So did Italy, but since the British Empire was already at war with her we will gloss over that
[9] Molotov–Ribbentrop_Pact, Wikipedia (as at 6.48 p.m. 2019-11-11)
[10] The Molotov-Ribbentrop Pact was once the tie break question in a pub quiz I attended; unfortunately my team came last so my encyclopedic knowledge of it wasn't able to be deployed.
[11]
[12] Yes I wrote this sentence just to get the genitive plural in there...
[13] House of Commons Debates, volume 376, column 1502 (1941-12-12)
[14] Commonwealth of Australia Gazette, 1941, No. 249, p. 2719
[15] I suspect there are more examples of this sort of thing, but I refuse to trawl through old Gazettes to find them, so it is an exercise for the reader!
[16] Commonwealth of Australia Gazette, 1941, No. 251, p. 2725
[17] The Canada Gazette, volume LXXV, no. 99, 7th December 1941
[18] And, yes, he was the King's uncle, he was born Prince Alexander of Teck and had previously been Governor-General of South Africa.
[19] London Gazette, issue 35374, page 7035, 8th December 1941
[20] London Gazette, issue 35373, page 6989
[21] House of Commons Debates, volume 376, column 1358, 8th December 1941
[22] Commonwealth of Australia Gazette, 1941, number 253, page 2729
[23] Fixme
[24] Indeed, it seems to have maintained diplomatic relations with the U.S.S.R. until ca. 1944!
[25] Bombing of Sofia in the Second World War, Wikipedia (as at 7.40 p.m. 2019-11-18)
[26] Parliamentary involvement in declaring war and deploying forces overseas, Parliament of Australia (accessed 7.50 p.m. 2019-11-18), (scroll down, a lot)
[27] Commonwealth of Australia Gazette, 1941, number [something because Ben forgot what it is...]
[28] London Gazette, issue 35447, page 643, 6th February 1942
[29] Bombing of Bangkok in World War II, Wikipedia (as at 8.42 p.m., 2019-11-18)
[29bis] (I didn't want to renumber), in effect Japan had invaded.
[30] House of Commons Debates, volume 377, column 692 (28th January 1942)
[31] House of Commons Debates, volume 413, column 49, 15th August 1945
[32] For another day, we might discuss the procedures involved with a State Opening sans a Commons Chamber...
[33] ibid. column 51 et seq.
[34] As verbatim as Hansard ever is.
[35] ibid. column 50